Citation Nr: 9811384
Decision Date: 04/13/98 Archive Date: 04/28/98
DOCKET NO. 97-18 542 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUE
Whether the appellant has basic eligibility for nonservice-
connected death pension benefits.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
L. McCain Parson, Associate Counsel
INTRODUCTION
The veteran performed verified military service from July
1924 to July 1928. He died in October 1992; and the
appellant is the deceased veteran’s widow.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 1995 decision by the
Albuquerque, New Mexico Regional Office (RO) of the
Department of Veterans Affairs (VA) denying the benefit
sought on appeal.
By an October 1997 statement, the appellant through her
representative withdrew her request for a hearing before a
member of the Board at the RO.
CONTENTIONS OF APPELLANT ON APPEAL
In essence, the appellant contends she is entitled to pension
benefits based on the veteran’s death and her status
therefrom.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
the appellant’s claim regarding basic eligibility for
nonservice-connected death pension benefits lacks legal
merit.
FINDING OF FACT
The appellant’s spouse, the veteran, had verified active
military service from July 18, 1924 to July 10, 1928.
CONCLUSION OF LAW
The appellant does not meet the requirements for basic
eligibility to receive VA death pension benefits. 38
U.S.C.A. § 101, 1521, 1541 (West 1991 & Supp. 1997);
38 C.F.R. §§ 3.1, 3.3 (1997).
REASONS AND BASES FOR FINDING AND CONCLUSION
The appellant in the present case seeks entitlement to VA
death pension benefits based on the military service of her
late husband. 38 U.S.C.A. §§ 1521, 1541; 38 C.F.R. §§
3.1, 3.3. She claims that her spouse’s military service
qualifies her for the benefit sought. The threshold question
that must be resolved with regard to the claim of entitlement
to VA benefits is whether the appellant has submitted a
meritorious claim. If her claim fails because of the absence
of legal merit or lack of entitlement under the law, the
claim must be denied as a matter of law. Sabonis v. Brown, 6
Vet. App. 426 (1994).
In this case, the service department has verified that the
deceased veteran had active military service from July 1924
to July 1928. See Duro v. Derwinski, 2 Vet. App. 530, 532
(1992). To establish entitlement to VA non-service-connected
pension benefits under 38 U.S.C.A. § 1521, the appellant must
show (1) that the veteran served during a period of war for a
requisite period of time; (2) that he is permanently and
totally disabled; and (3) that his income meets a certain
income standard. See also 38 C.F.R. § 3.3(a)(3) (1997);
Odiorne v. Principi, 3 Vet. App. 456 (1992); Brown v.
Derwinski, 2 Vet. App. 444, 446 (1992). Pursuant to 38
C.F.R. § 3.2(c) (1997), the Word War I era is defined as the
period beginning on April 6, 1917, through November 11, 1918,
inclusive. If the veteran served with the United States
military forces in Russia, the ending date is April 1, 1920.
Service after November 11, 1918 and before July 2, 1921 is
considered World War I service if the veteran served in the
active military, naval, or air service after April 5, 1917
and before November 12, 1918. The law and regulations in
this case authorize the payment of death pension benefits to
the surviving spouse of a veteran of a period of war who met
the requisite service requirements mentioned above. 38
U.S.C.A. § 1541. Based on competent evidence of record, the
veteran did not serve in Russia nor did he serve during a
wartime period; the veteran served during peacetime.
Therefore, the veteran’s service is not considered to be
“during a period of war,” and his service does not meet the
basic eligibility requirements for non-service-connected
death benefits. See 38 U.S.C.A. §§ 1521, 1541; 38 C.F.R. §§
3.2, 3.3.
Accordingly, the Board has no recourse but to find that the
basic eligibility requirement of requisite service for
entitlement to VA death benefits has not been satisfied.
Since the appellant's spouse did not have the requisite
service to qualify for death pension benefits, the appellant
has failed to establish her eligibility as a proper claimant.
Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). Therefore,
the claim has no legal merit and is denied. Sabonis at 426.
ORDER
Basic eligibility for nonservice-connected death pension
benefits is denied.
Deborah W. Singleton
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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